Delegation and constituent power

A delegation argument at first glance would seem to foreclose any kind of review of an original constitutional text itself. If the purpose of the unconstitutional constitutional amendment doctrine is to protect the original constituent power of the people, then it makes a considerable amount of sense to review an amendment to the constitution, but none to review the substance of the constitution itself, since the constitution is itself the act of the original constituent power.

In many cases where petitioners have attacked the substance of their constitutions, courts have adopted such reasoning rather clearly. For example, in Brazil, where the judicial review of constitutional amendments is an accepted practice, the Federal Supreme Court has emphasised that the cláusulas pétreas – the explicit immutable principles – limit only the secondary constituent power but not the primary constituent power.^{Footnote 53} Likewise, in Venezuela, in its decisions, the Supreme Court accentuated that constitutional unamendability cannot limit ‘the people’ in their capacity as holders of original constituent power.^{Footnote 54}

In two cases before the Constitutional Court of Bosnia and Herzegovina, certain constitutional provisions that granted privileges for the three constituent people (Bosnians, Serbs and Croats) were challenged before the Constitutional Court for conflicting with the principle of equality. The majority of the Constitutional Court held that it lacked the competence to decide upon the constitutionality of the Constitution. Otherwise, if it decided that part of the constitution was ‘unconstitutional’, it would fail its duty under Article VI(3)(a) of the Constitution to ‘uphold this Constitution’.^{Footnote 55}

The exceptions to this rule might also be seen as illustrating it. South Africa is a very well-known example where the Court certified whether the draft final constitution of 1996 complied with 34 substantive principles found in the interim constitution of 1993. The Constitutional Court declared several parts of an initial draft of the Constitution of 1996 to be unconstitutional before fully certifying a revision.^{Footnote 56} The interim constitution in this case clearly gave the Court the power to exercise this kind of judicial review, and all parties agreed that the final constitution-making process should be bound by the roadmap laid out in the interim constitution. In this sense, the interim and final constitution could both be seen as part of the same constitution-making process and the same intervention of the people. Therefore, in observing the constitution-making process, the Court arguably acted within its competence, exercising an explicit delegated authority.^{Footnote 57}

Another interesting exception might be the recent decision of the High Court Division in Bangladesh, in which a majority declared unconstitutional the Sixteenth Amendment to the Constitution.^{Footnote 58} This case raises thorny questions for constitutional theory because although the court reviewed and invalidated an amendment, this amendment restored an original constitutional arrangement concerning the removal of Supreme Court judges. Formally speaking, of course, the normative provision under review was a constitutional amendment enacted by the secondary constituent power (although reinstating parts of the original constitution).^{Footnote 59}

A potentially much broader form of review left open by the constituent power rationale goes to the process rather than the substance of constitution-making. Substantive review of an original constitutional text appears unavoidably to be judicial review of the original constituent power. But procedural review of a constitution-making process could be seen as defending the original constituent power against attempts to abuse its form in the name of powerful political actors or other forces. An increasing number of scholars suggest that constituent power must take a particular form to be legitimate.^{Footnote 60} In particular, it must reflect a reasonable approximation of popular will. Courts might thus review whether the process of constitution-making, such as the rules for triggering a constitution-making process, electoral rules for selecting an Assembly, voting rules in the Assembly, and rules for ratification via referendum and other process adequately reflect such an authentic popular will.^{Footnote 61}

We do not downplay the significant theoretical and practical obstacles to exercising this form of review, but merely point out here that it could be consistent with constituent power theories of constitution-making and judicial review. And indeed, some courts seem to adopt a similar approach during constitution-making processes. During the making of the Colombian constitution of 1991, for example, the Court held that the implications of constituent power theory required that the Court eliminate politically-imposed limits on the Constituent Assembly’s topics of deliberation.^{Footnote 62} In essence, the Court held that the exercise of original constituent power had to be unrestricted by a priori political pacts.

In Venezuela, more dramatically, the Supreme Court tried at several points to restrain the Chavez-led constitution-making process of 1999, while at the same time accepting the basic ability to rewrite the Venezuelan constitution by making use of constituent power theory.^{Footnote 63} These cases rest on a murky theoretical foundation. Nevertheless, they are perhaps best understood as attempts to ensure that the process reflected the true ‘will of the people’, even though they ultimately proved to be ineffectual. The most interesting intervention occurred relatively early on, when the Court held that Chavez’s attempt to send to referendum a question asking whether the public was in accord with the calling of a Constituent Assembly based on electoral rules that Chavez himself would later draft was unconstitutional.^{Footnote 64} In particular, it held that this question violated a requirement that the process represent the ‘true popular will’, and instead required that Chavez lay out his proposed electoral rules before the referendum was held.^{Footnote 65} This requirement ultimately did little to restrain Chavez – his referendum won overwhelming support with highly majoritarian electoral rules that allowed his forces to dominate the Assembly – but it does show how courts might be able to use variants of constituent power theory to shape the exercise of original constituent power.^{Footnote 66}

In Honduras, of course, the Supreme Court did not adjudicate the process of making the 1982 constitution at all, but rather a set of substantive provisions. In challenging these provisions, the Court challenged a decision made by the original constituent power. And not just any of its decisions, but one that seemed – because of the many different ways in which it was instantiated and protected in the text – to be fundamental to that power, virtually the heart of the 1982 Constitution. This kind of review seems simply impossible to square with constituent power or delegation theories of judicial review.^{Footnote 67}

Pragmatism

Many defences of the unconstitutional constitutional amendment doctrine focus on its potential utility as a speed bump in slowing down forms of constitutional change that threaten to damage a liberal democratic order. From this perspective, constitutional replacement poses similar risks to constitutional amendment.^{Footnote 68} Powerful political actors can use the constitution-making process to centralise power, reduce the power of the opposition, and take control of or reduce the strength of horizontal checks such as courts. Indeed, because constitution-making allows drafters to alter a number of norms and institutions at once, it may pose a particularly salient risk. At least viewed in terms of potential damage to liberal democracy, the case for restraining constitutional change via replacement is at least as strong as the case for restraining change via amendment.^{Footnote 69}

The Honduran Constitutional Court’s decision is, however, difficult to justify through such a lens. The term limit itself, and even the anti-attempt provisions guarding it, did not pose a realistic threat to liberal democracy. Indeed, it would appear that in the eyes of the drafters of the 1982 constitution, it was a safeguard against its erosion through the route of a caudillo remaining in power indefinitely and then using that duration in office to tilt the electoral playing field in their favour.^{Footnote 70} This perspective was maintained in recent Honduran history. The main popular argument against President Zelaya was that his attempts to rewrite the constitution were aimed at allowing him to remain in power, thus threatening liberal democratic constitutionalism in Honduras.^{Footnote 71} Article 239 in that instance was used, ironically by some of the same actors who would in 2015 seek its removal, as a justification for the irregular removal of a sitting president.

The potential threat to liberal democracy in this episode instead may stem from the Court itself, by effectively abolishing any presidential term limit. As is suggested by recent experience elsewhere in the region, leaving the door open for indefinite presidential re-election may increase the risk of a powerful political actor establishing a competitive authoritarian regime where elections are still held but the opposition is forced to compete on a heavily tilted playing field and lacks guarantees of its fundamental rights.^{Footnote 72} The context in which the decision was issued – at the behest of politicians affiliated with the ruling National Party, and after that party had taken illegal measures to pack the Constitutional Chamber – heightens those risks further.^{Footnote 73}

The Honduran Court nonetheless made an unusually pragmatic argument for removal of the term limit, although on different grounds. It focused on two arguments. The first was that the provision at issue ‘may have made sense in its time, but not today after the country has gone through ten electoral processes’.^{Footnote 74} The Court thus suggested that it had the power to update the Constitution by excising a now outdated provision. Second, the Court blamed the eternity clause preventing amendment of the term limit for causing some of the problems during the Zelaya episode. It suggested that its decision would allow for a peaceful exit caused by the ‘dilemma’ of a term limit that could not otherwise be changed through any democratic process.^{Footnote 75}

It is well accepted that courts have a power of interpretation that will often act as a form of informal change or updating of a constitutional text. But this is quite different from the act of formally invalidating a part of the constitutional text as the Court did here.^{Footnote 76} In practice, highly rule-like provisions often cannot easily be updated or informally changed by courts. The United States constitution offers an interesting example – rule-like clauses requiring that a citizen be 35 years of age to run for president, or that a right to jury trial be given for all common-law claims with amount in controversy over $10, have never been updated despite potential arguments that they are outdated and a Supreme Court that has aggressively reinterpreted other parts of the constitution such as the scope of federal power.^{Footnote 77}

The Court’s argument also reflects a somewhat cramped view of the legal arguments surrounding eternity clauses. These can be viewed as a form of tiered constitutional design, thus making a given kind of constitutional change unachievable through amendment but allowing it through replacement. So understood, the argument preserves the distinction between ‘original’ and ‘derived’ constituent power that lies behind the delegation rationale, by allowing the people to make any legal change they wish. It also preserves space for even fundamental constitutional change by democratic process, rather than judicial action alone.

In the Honduran context, of course, the eternity clause protecting term limits appears to have been understood differently during the Zelaya episode: those supporting his removal often argued that he could not change the no-re-election rule even through the drafting of a new constitution, and that his alleged attempts to do so were grounds for removal.^{Footnote 78} And the peculiar features of the Honduran constitutional design, which not only make the term limit unamendable but punish any attempt to change it, doubtlessly contributed to this perception.^{Footnote 79} Even if it were necessary to provide an ‘exit’ by somehow excising the anti-attempt provisions, this could have been done without touching the term limit itself or even the eternity clause protecting it.

International law and hierarchy

The Honduran Court’s explicit rationale focuses largely on a vision of Honduran constitutionalism that subordinates norms in the domestic constitution to certain precepts of international law, such as international human rights law. The Court suggests that it has the power to declare parts of the constitutional order to be incompatible with international principles and therefore to hold them ‘inapplicable’.^{Footnote 80} The Court thus suggests a hierarchy in which the domestic constitution is itself subordinate to some aspects of the international legal order.

Such a vision of judicial power collapses any distinction between judicial review of constitutional amendments and replacements; in either case constitutions themselves may be controlled by higher legal principles found in international law.^{Footnote 81} As Colón-Ríos has observed, it is thus in tension with the delegation or constituent power theory and seems to drive towards an alternative theory.^{Footnote 82} Rather than viewing constitution-making as an autonomous act carried out by the people, it seems to view it as a legally controlled and subordinated act. Of course, from the perspective of international law, this is clearly the case, as international law is regarded as superior to domestic law – constitutional law included – be it constitutional amendments or original constitutional provisions. Accordingly, supra-national law may pose limitations both to constitutional amendments and original constitution-making.^{Footnote 83}

This notion is also reflected in Article 27 of the Vienna Convention on the Law of Treaties according to which domestic legal norms, including constitutional norms, cannot be a ground for excusing a state’s responsibility. Accordingly, when constitutional norms conflict with an international obligation, the former may be declared by an international body as unenforceable and the state can be found responsible. However, such unenforceability applies merely in the international sphere, and the constitutional norm would retain its validity under domestic national law.^{Footnote 84}

At the same time, such a view may be useful from a pragmatic perspective because it allows for the possibility that constitutional replacement, in addition to amendment, can be used to erode liberal democracy, and allows for a set of procedural or substantive tools that could be used to restrain both.^{Footnote 85}

At minimum, of course, a court seeking to make this kind of argument would need to establish three points: (1) that a subordination of domestic constitutional law to international law, from the perspective of the domestic constitutional order, was theoretically possible, (2) that such a subordination had in fact occurred in the text, and (3) the content of the international law being used to control the domestic constitution.^{Footnote 86} One might argue that a constitution itself could delegate to a court the power to judge whether its own provisions were consistent or inconsistent with international legal standards, and to annul parts of the constitution that were inconsistent with those standards. A constitutional order might thus seek to restrain itself in particularly strong form by not simply committing its constitutional stability to rigid domestic norms, but also to international legal standards.^{Footnote 87} It is also unclear whether this kind of argument works in the context of review of an original constitution rather than a later amendment, since transnational practice itself does not stand in a hierarchical relationship to a domestic constitutional text.^{Footnote 88}

The Honduran Supreme Court, at any rate, made little effort to establish its constitution had created such a hierarchy. The Court points mostly to a constitutional provision stating that Honduras makes certain principles of ‘international law’ its own.^{Footnote 89} This is a fairly thin reed on which to hang such a strong claim. Even if it incorporates international law into the Honduran legal order in some form, it does not clearly establish the supremacy of international law over the domestic Honduran constitution.

There is also a separate problem: the relative scarcity of international law rules governing either the procedure of constitution-making or its substance. True, emerging international and supranational legal rules address matters such as constitutional reform.^{Footnote 90} But the most commonly cited emerging or existing international legal rule for the process of constitution-making requires that it be ‘participatory’.^{Footnote 91} Recent work has shown that this is a highly ambiguous, perhaps nearly indeterminate concept, and that in practice constitution-makers have used a large number of different models which they have labelled ‘participatory’.^{Footnote 92}

It may of course be possible to use international human rights law and other areas of law (such as jus cogens or international humanitarian law) as criteria for invalidating substantive constitutional provisions,^{Footnote 93} as a source of evidence as to the scope of transnational constitutional practices – what Dixon and Landau have called the ‘democratic minimum core’,^{Footnote 94} or as ‘minimum constitutional guarantees’ which limit constitution-making.^{Footnote 95}

There might be both principled and pragmatic reasons for doing so. In South Africa, for instance, in 1993 in the transition from apartheid the key parties to constitutional negotiations (i.e. The ANC and the National Party) agreed to adopt a set of constitutional principles as the basis for future democratic decision-making, which drew directly on the idea of protecting ‘universally accepted fundamental rights, freedoms and civil liberties’ in both the interim and final Constitution.^{Footnote 96} This had a pragmatic justification: it provided the National Party with a degree of ‘insurance’ against overly majoritarian forms of decision-making by a later democratic ANC majority, and thereby facilitated an agreement to allow for a truly democratic process for the draping of the final 1996 Constitution.^{Footnote 97}

The 1996 Constitution itself also incorporated international norms, but in a different way. Section 36 of the South African Constitution provides that limitations on rights can be justified providing they are ‘reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom’. The incorporation of transnational legal norms, in this context, could also serve a variety of more principled functions: it could serve as a source of at least quasi-objective guidance to constitutional judges as to the scope and content of open-ended ideas such as democracy and freedom; it could help check certain behavioural biases on the part of judges about the degree to which particular features of their own system are in fact fundamental or necessary to democracy; and in other cases, provide important discursive or rhetorical support for attempts by judgments to enforce the democratic minimum core in the face of ‘abusive’ forms of constitutionalism.^{Footnote 98}

In the context of guiding the unconstitutional constitutional amendment doctrine, Dixon and Landau have argued for the use of transnational legal practice rather than international law.^{Footnote 99} That is, instead of seeking to identify and apply binding international legal norms that are suited to restrain the procedure or substance of constitutional change, they have called on courts to use design and other constitutional systems as an anchor. Consideration of such practice may be helpful as a guideline: the existence of a design element in other liberal democracies may alleviate concerns about its effects on liberal democratic constitutionalism, while its absence may raise additional suspicions and give a judge more legitimacy to strike down a particular constitutional change.

This kind of approach to international law, however, does not give international law true supremacy qua international law, but rather treats it as having epistemic value as part of a process of ‘transnational constitutional anchoring’. It also takes seriously the existence of reasonable disagreement, among democracies, about the different possible ways of institutionalising shared commitments to freedom and self-government: What is essential, or inessential, to democracy will of course depend on the specific national context, and the history of political power and constitutionalism in the country and region. Term limits, for example, may be relatively unimportant in parliamentary systems but quite important in presidential systems as a means of restraining the concentration of political power in a single actor, especially in regions such as Latin America with a history of hyper-presidentialism.^{Footnote 100} But presidential systems also clearly vary in the degree to which they permit re-election for one or two terms of different lengths, as we elaborate below.

A commitment to transnational anchoring is thus as much an approach aimed at restraining, as empowering, courts to focus on the minimum requirements for competitive democracy in the application of open-ended doctrines such as an unconstitutional constitutional amendment doctrine – or the exercise of powers of ‘super-strong’ judicial review. This is also even truer for the application of an unconstitutional constitutional doctrine, which purports to constrain all legal processes of constitutional change.

The Honduran Court, in relying on comparative practice, failed to give credit to this notion of reasonable disagreement. The Honduran Court carried out some version of transnational analysis: it noted that the provisions at issue were ‘strange in comparative law’, and used this argument to bolster its conclusion that the various provisions should be held inapplicable.^{Footnote 101} But this analysis arguably ignored the variation on constitutional regulation of re-election in comparative law. Pure presidential systems in Latin America demonstrate a range of approaches to presidential terms, ranging from no term limit at all to a similar level of strictness as found in Honduras. Mexico, Colombia, Paraguay and El Salvador, for example, all currently limit presidents to only one lifetime term in office.^{Footnote 102} The same is true of other pure presidential and semi-presidential systems around the world.^{Footnote 103} The Venice Commission, acting on a referral from the Organization of American States, recently conducted a review of the question of whether presidential term limits would generally violate international human rights and found the answer to be a clear no.^{Footnote 104} It based this conclusion both on the commonality and variation of term limits in national practice and on well-accepted limits on rights like the right to political participation.^{Footnote 105}

Similarly, eternity clauses completely prohibiting amendment to certain articles, although treated as a bizarre animal by the Honduran Court, are also common in comparative terms.^{Footnote 106} And these clauses protect a range of articles, including with some frequency presidential term limits. Constitutions in Africa and elsewhere in Central America guard their presidential term limits with an eternity clause.^{Footnote 107}

This leaves the anti-attempt provisions, which do seem to be highly unusual in comparative constitutional law. The rarity of these provisions might place extra suspicion on them, although this by itself is not enough to have them excised. A more reflective analysis would be needed, one which would consider the impact of these provisions on the liberal democratic order or perhaps core constitutional ‘identity’. The Court relied on comparative law as a guide to scope of commitments to freedom of expression, but without fully acknowledging the global variation in the concrete content or implantation of such norms.

The main claim in the Honduran Court’s decision in this context seems to be that the anti-attempt provisions protecting the unamendable one-term limit clashed with fundamental rights of freedom of expression found in international and regional human rights law. At least on a broad read of Articles 239 and 42, it would be possible to draw a conclusion that they disproportionately limit acts of expression aimed at expressing disagreement with the term limit itself. But the highly unusual context seems relevant to this inquiry – the provisions impinge on expression on the single question of presidential re-election and seem to target political officials undertaking projects to remain in office, rather than the citizenry as a whole. Furthermore, any collision between these anti-attempt provisions and the freedom of expression depends crucially on how broadly phrases like ‘attempt’, and ‘promote’ are interpreted. Under plausible readings, these provisions would not target expression critiquing the clauses at all, but only actions aimed at a president remaining in office or removing the limit.

Moreover, a more sophisticated constitutional analysis might compare the Honduran provisions to other ‘democratic defences’: approaches sometimes thought to be in tension with fundamental human rights but thought to be allowed as efforts to protect liberal democratic constitutionalism. One obvious comparison, for example, is the militant democracy practice of allowing Constitutional Courts to ban anti-democratic or anti-constitutional political parties, which originated in Germany and is now found in a number of countries.^{Footnote 108} These practices have been upheld by human rights tribunals under certain circumstances as appropriate limitations on expressive, associational, and political rights in order to prevent liberal democracy from being hijacked from within.^{Footnote 109} The Honduran anti-attempt provisions could be seen as similar, and indeed milder, prohibitions along the same lines. Thus, the international and transnational case against even the anti-attempt provisions is far murkier than it at first appears.

Stability

Finally, and as noted above, a particular problem with judicial review of constitutional amendments is that it can be particularly destabilising, by striking down not just ordinary legislation, but constitutional ground rules around which parties coordinate. These arguments would seem to apply with even more force to review of the original constitution itself.

Part of the difference lies in the fallback or default where a constitutional provision is struck down. When an amendment to the constitution is held unconstitutional, actors can at least return to the pre-amendment constitution. The normative consequences of striking down provisions or an original constitution, or even the entire constitution, are murkier. There is no fallback provision in that case, and the resulting constitutional text may become incoherent.

The distinction between the Costa Rican and Honduran decisions involving term limits is relevant on this point. The Costa Rican Supreme Court held an amendment to the constitution establishing a lifetime limit of one presidential term to be unconstitutional; the result of the decision, the Court held, was to default to the older constitutional provision, where the term limit barred consecutive but not lifetime terms.^{Footnote 110} The Court thus loosened the rules governing term limits, but left a meaningful limit in place. In Honduras, in contrast, when the Court held the term limit inapplicable because of its ‘direct and necessary relationship’ to the anti-attempt provisions in Articles 239 and 42, it left the country with no term limit at all: presidents can now run for consecutive re-election indefinitely. It makes little sense to see this as a decision of the ‘original constituent power’, which expressly put a very tough term limit in place. Nor does it really make sense as a fallback provision – it seems unlikely that the constituent power’s preferred alternative to the strictest term limit would be no term limit at all. It is instead a natural consequence of the normative vacuum that resulted when the Court struck the term limit down.

The timing of review seems like a partial response to the challenge posed by instability. It is worth noting that the episodes involving judicial review of constitution-making process or substance noted above occurred during the constitution-making process, rather than afterwards. In Venezuela, for example, the Court reviewed the process of selecting the Assembly, not the 1999 constitution itself after it had been promulgated. In South Africa, the Constitutional Court reviewed a draft, un-promulgated version of the new constitution, based on an explicit agreement in the interim constitution that it would be given this power.

In contrast, where courts have been asked to review already promulgated and in-force constitutions, they have generally rejected the claims and drawn heavily on ideas about the destabilising effects of their interventions to do so. Chile offers an interesting example. Several petitioners challenged the 1980 Chilean constitution by challenging the process through which the constitution was approved.^{Footnote 111} They rightly pointed to numerous problems in the Chilean constitution-making process. The constitution was adopted during a repressive military dictatorship with only highly limited mechanisms of popular participation, after the military regime had taken power in a coup and suspended compliance with the existing constitution. The text was drafted by an appointed commission and then military actors, rather than being debated or adopted by an elected body. The final text was approved in an up-or-down referendum, but one held under continued military rule and highly restrictive and unfair campaign conditions in which the opposition could not make much of a public case. Despite these devastating flaws in the origin of the 1980 constitution, the Constitutional Court rejected the argument and seemed primarily convinced by the argument that since it itself was a creature of the 1980 Constitution and drew its legitimacy from it, it could not review the constitution-making process or final constitution. The argument sounded in stability – if the 1980 constitution were reviewed and struck down, then not only would the Court’s own authority be endangered, but the country would be in danger of existing in a normative vacuum.

All of this suggests that timing is crucial. This is true when it comes to judicial review of constitutional amendments, and it is all the more so when it comes to reviewing the original constitution. The problem of judicial review of amendments is often corrected with textual or judge-made rules that review is only allowed ex ante, before an amendment has become part of the constitutional text, or within a strictly defined period after they have gone into effect (say, one year). Even the most egregious problems with constitution-making cannot easily be corrected if a constitution has become an instrument of reliance, and perhaps not after a constitution has gone into effect at all. In other words, review of a constitution itself might always need to be ex ante. The Honduran Court’s analysis stands out as puzzling from this perspective, once again, because it reviewed a provision that had been in effect for over 30 years, and which had been a focus of constitutional debate.